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Can I Move Out-of-State if I Have Sole Custody in California?

After a divorce, it is not uncommon for one parent to want to move to a different state for a new start, perhaps to be closer to family or to pursue a new job or career, whether immediately after the divorce or even years later. Where a divorced couple has joint custody over a child, and only one parent seeks to move away, this can be quite complicated, and will in many cases mean custody should be changed to sole custody in favor of one of the parents. Where a parent with sole custody of a child, however, seeks to move away with a child, the process can be simpler, but there are still legal issues to attend to, and a non-custodial parent can take action to prevent the move from occurring.

A Sole Custody Parent Has a Presumptive Right to Move

The California law affecting a sole custody parent’s right to move out of state with a child is complicated, and has evolved over the years based on new court rulings in such cases, but there is a general legal principle that a parent with sole custody has a “presumptive right” to move away with a child out of the state. A presumptive right means that the law will presume that the parent can do this, but the other parent can nevertheless raise objections which a court may use to prevent the child from being taken out of the state.

The Parent Does Not Have to Prove the Move is “Necessary”

When the other parent does raise objections to a custodial parent attempting to move out of state with the child, the court will, again, give deference to the parent’s attempt and there is no requirement that that parent show that the move is “necessary.” At the same time, California courts do operate on a guiding principle of encouraging ongoing contact between the child and both parents after a divorce, and so the courts will take the ability of the child to have continuing relations with the other parent into consideration when evaluating the move.

Ultimately, the courts are concerned solely with the best interests of the child when evaluating custody situations and not in how a proposed situation affects the parents, and continuing contact with both parents, while important, is not the only matter it will consider. If a parent wants to move for reasons that will benefit the child, such as better employment prospects and closer contact with extended family, this will factor into the child’s best interests and may override the concern about contact with the other parent, especially where such contact was limited prior to the proposed move.

But if a parent is seeking to move out of state as a way of preventing contact with the other parent, the court may consider this “bad faith” and not approve the move. Such evaluations are complicated due to the fact that, in the words of the Supreme Court of California, “Absolute concepts of good faith versus bad faith often are difficult to apply because human beings may act for a complex variety of sometimes conflicting motives.” This is certainly often the case where there is an interstate move involving a child.

A Court Can Also Reevaluate the Custody Decision

One important thing to keep in mind is that a noncustodial parent always has the right to ask a court for a modification where there is a significant change of circumstances, and an out-of-state move will likely be considered a change of circumstances. In such a case, the court can reevaluate whether the best interests of the child would be served by remaining in the same state. If the custodial parent nonetheless insists on moving to another state, this could precipitate a change in custody.

In all cases, both parents in situations involving out-of-state moves should consult with an experienced California family law attorney to determine their options.

Get Help in Your Custody Matter

The Pasadena family law attorneys at Kearney | Baker work with clients across Southern California in helping them reach the best possible results for parents and children alike. For help with any family law matter you are facing, please contact the experienced, compassionate family law attorneys at Kearney Baker today at 626-768-2945.

2 thoughts on “Can I Move Out-of-State if I Have Sole Custody in California?

  1. I have a question about move away situation. I have sole physical custody and my current husband got a job offer in Henderson Nevada. My kids father rarely keeps his visitation schedule is telling me he doesn’t want them going. Both my 12 and almost 9 year old deeply want to go and DO NOT want to live with their father. Do I NEED his approval. It will also move me closer to my 20 year old independent son.

    1. Hi Sarah, thanks for your question. Unfortunately, there are a couple of other factors that must be considered before we can provide an answer. To respect your privacy, I’d suggest you give us a call at 626-531-2313 for a personal consultation. Thanks again.

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